Credit: Bob Andres/AJC
Credit: Bob Andres/AJC
Melton takes 10 pages of single-spaced text to conclude that betting on the outcome of a football game is more like a “lottery” than betting on the outcome of a horse race. He has to argue this because Georgia’s Constitution bans “pari-mutuel betting” (which includes – but certainly is not limited to – gambling on horse races) but does allow the legislature to run a “lottery.”
As Melton correctly points out, lotteries have been banned in Georgia by statute since the state’s founding, but they were not banned in the state’s Constitution until 1868. Lotteries continued to be banned in the state Constitution with virtually no change until 1992. They were banned in the Constitutions of 1868, 1877, 1945, 1976, and in our current Constitution, adopted in 1983. These Constitutions did not address any other forms of gambling such as pari-mutuel betting or casino gambling – just lotteries.
This changed in 1992, when the voters (grudgingly) amended their Constitution to allow the legislature to approve a “lottery” for education purposes, while at the same time going out of their way to specifically prohibit the legislature from approving two other forms of gambling that were already banned by statute but not in the Constitution: “pari-mutuel betting” and “casino gambling.”
The question thus becomes, is gambling on the outcome of football games more like: 1.) a lottery, 2.) pari-mutuel betting, or 3.) casino gambling? If it’s more like either of the latter two it is not allowed in Georgia – until the voters agree to yet another amendment to the Constitution. If it’s more like a lottery, then the legislature can allow it, because the voters gave that power to the legislature in 1992.
Melton begins by acknowledging that words added to the Constitution by the people must be understood to have the popular meaning they had at the time the people first agreed to add those words to their Constitution.
When the voters first approved the ban on “lotteries” in 1868, the word was understood to mean “a scheme for the distribution of prizes by chance.” (Hence the very word itself: a game in which the winner is chosen by “lot.”) That certainly does not describe betting on the outcome of a sporting event.
Melton also acknowledges that in 1992 the popular definition of “pari-mutuel” betting was any form of “pooled wagering wherein the winners take the total amount wagered, minus expenses for management, in proportion to the sums they have wagered individually.” That certainly includes sports betting.
Here’s where legal sleight of hand comes in: Melton argues that the voters in 1992 could not have intended to include any kind of sports betting other than track racing in their understanding of “pari-mutuel betting,” because in 1992 track racing was the only form of pari-mutuel betting that was legal anywhere outside of Georgia. Therefore, since sports betting is obviously not casino gambling, then – by process of elimination – all sports betting other than track racing HAS to be a “lottery.”
This is baloney. In 1992, when track racing may have been the only form of pari-mutuel betting that was legal, in a few places outside of Georgia, everyone knew that pari-mutuel betting – on every other sport besides track racing – was also going on all over the country. Even in Georgia. Indeed, people have been gambling on football games in Georgia for as long as we’ve had football. Even though it’s against the law.
Any first-year law student knows that just because something isn’t legal doesn’t mean it’s not going on. And when the people address something that’s banned by statute by putting that ban in their Constitution – the only law which requires their direct consent – they are putting it beyond the power of the legislature to change by statute. You’d think that Melton would know that, too.
“Pari-mutuel” is the word that has always been applied to gambling on the outcome of some other contest – a race, a fight, a game, whatever. Unlike a lottery, it depends on such things as the skill or strength of the contestants, and on the skill of the gambler in evaluating the contestants. That is the very essence of sports betting.
Meanwhile, the word “lottery” has always been understood to describe any game that awards winnings based solely on chance – literally, by “lot.”
As far as what the voters meant when they amended the Constitution in 1992, that’s the end of the matter.
I do not write this as a supporter or opponent of sports betting – I express no opinion on the subject. But whatever your opinion on the desirability of sports betting, a legal opinion should be based on the law, not on legalistic hocus-pocus. Especially when lawmakers – and the public – are being asked to rely on that opinion.
The big question is whether the Supreme Court will even be asked to decide the issue. That would require that the legislature accept Melton’s “opinion” and act on it. If they do, their voters will know that his opinion is not worth the paper it’s written on. And will judge their legislators accordingly.
John Barrow, of Athens, is an attorney and former U.S. congressman.